Elmer Stewart v. Krista Gannon

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
February 3, 2026
ELMER STEWART,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 25-ICA-325 (Fam. Ct. Mingo Cnty. Case No. FC-30-2016-D-85)

KRISTA GANNON,
Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Elmer Stewart appeals the Family Court of Mingo County’s June 30,
2025, final order finding him in contempt for failing to pay the monthly mortgage payments
on the former marital home pursuant to a prior agreement.1 Respondent Krista Gannon did
not participate in this appeal.2

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the family court’s order is appropriate
under Rule 21 of the West Virginia Rules of Appellate Procedure.

The parties were divorced by a final divorce order on April 14, 2016. Incorporated
into paragraph seventeen of that order was the following agreement between the parties:

That [Ms. Gannon] shall be awarded ownership, title and possession of the
former marital residence with contents, and [Mr. Stewart] agrees to be
responsible for any indebtedness associated with said property so long as
[Ms. Gannon] and infant child reside in the marital residence alone.3 In the
event that [Ms. Gannon] remarries or has someone else move in, she shall be

1
Mr. Stewart is self-represented.
2
We recognize our limited and circumspect review of a family court order in an
uncontested appeal, like this one, where the respondent fails to participate on appeal to
support the order.
3
The parties’ child was born in 2007 and was eighteen years of age when the order
on appeal was filed.

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responsible for any indebtedness associated with said property. [Mr. Stewart]
waives any interest in said property.

On February 27, 2025, Ms. Gannon filed a petition for contempt alleging that Mr.
Stewart failed to pay his monthly mortgage obligation. On April 29, 2025, the family court
conducted a final evidentiary hearing on Ms. Gannon’s petition. By final order entered
June 30, 2025, the family court found that Ms. Gannon and the parties’ child had lived in
the former marital home since the April 14, 2016, final divorce order was entered. The
court further found that Ms. Gannon has never remarried and had not permitted anyone
else to reside in the home. The family court’s order found that Mr. Stewart “adamantly and
repeatedly testified that he was not going to pay the court-ordered mortgage payments”
although he “understands that he is required to do so pursuant to his previous agreement.”
The court went on to find that Mr. Stewart had been previously held in contempt, both in
2021 and 2022, for failing to pay his mortgage obligation.

The family court went on to explain that Ms. Gannon, in an attempt to avoid
foreclosure due to Mr. Stewart’s failure to pay the mortgage, opted to temporarily reduce
the mortgage payments from $618.00 to $248.44 through the Coronavirus Aid, Relief, and
Economic Security Act (“CARES Act”), which provided mortgage payment forbearance
options in the form of either a temporary postponement or temporary reduction of mortgage
payments during the COVID pandemic. The family court found that Mr. Stewart’s income
was in excess of $100,000 “each year for three years including the year 2023” but that he
quit working for that employer, “offered no objectively reasonable explanation for
terminating said employment[,]” and presently earned $17 per hour. The court specifically
found that Mr. Stewart was not credible and stated that this finding was based on Mr.
Stewart’s body language, facial expressions, and tone of voice due to the context of the
evidence in the record and other testimony.

The family court determined that the mortgage was in arrears although the payment
was presently set at the reduced amount of $248.44 by the CARES Act and that foreclosure
was imminent due to Mr. Stewart’s repeated refusal to timely pay the mortgage. The court
explained that Mr. Stewart had the present ability to comply with the April 14, 2016,
divorce order and that his nonpayment was “not merely a failure, but a defiant and repeated,
refusal to do so.” As such, the family court found Mr. Stewart in willful contempt of the
April 14, 2016, final divorce order and ordered that if Mr. Stewart had not paid the past
due mortgage in full by 12:00 p.m. on Monday, July 21, 2025, then he would be
incarcerated for a period of thirty days. It is from this June 30, 2025, final order that Mr.
Stewart now appeals.

When reviewing the order of a family court, we apply the following standard of
review:

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When a final order of a family court is appealed to the Intermediate Court of
Appeals of West Virginia, the Intermediate Court of Appeals shall review
the findings of fact made by the family court for clear error, and the family
court’s application of law to the facts for an abuse of discretion. The
Intermediate Court of Appeals shall review questions of law de novo.

Syl. Pt. 2, Christopher P. v. Amanda C., 250 W. Va. 53, 902 S.E.2d 185 (2024); accord W.
Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate court review of family
court orders).

On appeal, Mr. Stewart raises five assignments of error that involve a single issue.
Therefore, they will be consolidated, and the issue will be discussed below. See generally
Tudor’s Biscuit World of Am. v. Critchley, 229 W. Va. 396, 402, 729 S.E.2d 231, 237
(2012) (stating that “the assignments of error will be consolidated and discussed
accordingly”).4

Mr. Stewart argues that the family court erred by finding him in contempt because
he should no longer be required to pay the mortgage payments on his former marital home
since the parties’ child is eighteen and attends college. In support of his argument, Mr.
Stewart asserts that his agreement to pay the mortgage was a form of “child-related
support” as it was solely for the child’s stability. He asks this Court to modify the April 14,
2016, final divorce order by determining that his “child-related support” mortgage
agreement “has been fulfilled” and is now inapplicable due to the child no longer primarily
residing at the former marital residence since his college enrollment. We are unpersuaded
by this argument for the reasons set forth below.

First, we note that “[o]nce a competent party makes a settlement and acts
affirmatively to enter into such settlement, his second thoughts at a later time as to the
wisdom of the settlement does not constitute good cause for setting it aside.” Moreland v.
Suttmiller, 183 W. Va. 621, 625, 397 S.E.2d 910, 914 (1990). In Deitz v. Deitz, 222 W. Va.
46, 54, 659 S.E.2d 331, 339 (2008), the Supreme Court of Appeals of West Virginia has
acknowledged that “[a]n integral part of the family court’s authority to enter final orders
of divorce is its corresponding power to enforce those orders through contempt
proceedings.” Further, the family court’s enforcement of such orders is within its
discretion. See Mark V.H. v. Dolores J.M., 232 W. Va. 378, 387, 752 S.E.2d 409, 418

4
The Court notes that Mr. Stewart’s brief contains no argument section and fails to
include any citation to legal authority or citation to the record below in accordance with
Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure.

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(2013) (per curiam); see also Joshua T. v. Angela M., No. 22-ICA-221, 2023 WL 2366493,
at *2 (W. Va. Ct. App. Mar. 6, 2023) (memorandum decision).

While Mr. Stewart argues that the mortgage agreement was a form of child support
that is no longer applicable, the April 14, 2016, final divorce order contains no such
provision. Rather, the final divorce order states Mr. Stewart’s child support obligation was
in the amount of $600 per month. Further, the parties’ child was fourteen in 2021 and
fifteen in 2022 when the family court previously held Mr. Stewart in contempt for failing
to pay the mortgage, and Mr. Stewart stopped paying the mortgage prior to the child’s
eighteenth birthday and prior to the child starting college. As such, we find no merit in Mr.
Stewart’s argument that the mortgage payment was to support the stability of the child in
the form of child support.

Additionally, Mr. Stewart had the opportunity to request relief from the mortgage
agreement, including through an appeal of the April 14, 2016, final divorce order.
However, the record reflects that he has not requested such relief. The fundamental due
process requirement for proceedings seeking to modify or revise a final divorce order is
that a pleading be pending and reasonable notice of a hearing upon the pleading be given
to the party whose rights are sought to be affected. See Syl. Pt. 2, Simpson v. Stanton, 119
W. Va. 235, 193 S.E. 64 (1937). See State ex rel. Chris Richard S. v. McCarty, 200 W. Va.
346, 489 S.E.2d 503 (1997). See W. Va. Const. art. III, § 10. Therefore, we are unable to
conclude that the family court abused its discretion or clearly erred by finding Mr. Stewart
in contempt for failing to pay the monthly mortgage payment of the parties’ former marital
home pursuant to their agreement incorporated into the court’s April 14, 2016, final divorce
order.

Accordingly, we affirm the family court’s June 30, 2025, final order.

Affirmed.

ISSUED: February 3, 2026

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Charles O. Lorensen
Judge S. Ryan White

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